Donald Trump presses limits on transgender rights over Supreme Court ruling

The Trump administration Friday published its rule allowing single-sex homeless shelters to exclude transgender people from facilities that correspond with their gender identity, pressing forward with limits on transgender rights despite a Supreme Court ruling that extended civil rights protections to transgender people.

The new rule on homeless shelters will go into effect after a 60-day comment period. Administration officials argue that it will make women’s shelters safer by preventing men from gaining access to abuse or attack women seeking protection.

Transgender rights groups say it is more likely to force some transgender women to go to men’s shelters where they could face assault.

The policy is just a small piece of a broader, government-wide effort to diminish protections for transgender people. President Donald Trump’s 2017 ban on transgender people enlisting or serving in the military has now been in effect for more than a year. A Department of Health and Human Services rule erasing protections for transgender patients against discrimination by doctors, hospitals and health insurance companies were finalized in June.

The Education Department has rescinded Obama-era rules that allowed transgender students to use bathrooms of their choice or participate in sports corresponding with their gender identity. The Justice Department has moved to roll back protections for transgender people in federal prisons, and the Office of Personnel Management has suspended protections for transgender employees of federal contractors.

“Across the board, when you’re cut out of the federal protections you used to have, people are more likely to experience discrimination, and they’re less likely to talk about it,” said Robin Maril, an associate legal director at the Human Rights Campaign, the largest LGBT rights group. “It has a significant chilling effect.”

The Department of Housing and Urban Development did not respond to questions about the new shelter rule, but Ben Carson, the secretary of housing and urban development, has previously expressed concern about “big, hairy men” entering women’s shelters.

“The current HUD rule permits any man, simply by asserting that his gender is female, to obtain access to women’s shelters and even precludes the shelter from asking for identification,” Carson said last week in a letter to Democratic lawmakers in the House obtained by The New York Times.

Transgender rights groups say transgender women are the ones at risk. In a report released in 2011 by the National Center for Transgender Equality and the National Gay and Lesbian Task Force, more than half of the transgender people who had used a homeless shelter said they had been harassed.

The rule, first announced three weeks ago, was published in the Federal Register a month after the Supreme Court ruled that transgender people cannot be fired or otherwise discriminated against in the workforce, because federal protections against sex discrimination apply to gay, bisexual and transgender people. The ruling in the case, Bostock v. Clayton County, Georgia, was a landmark moment for gay and transgender rights.

“Secretary Carson’s insistence on pressing forward with this discriminatory policy — despite the Bostock ruling and clear consensus among experts and service providers opposed to this rule change — betrays a disturbing determination to target and endanger trans-Americans,” Rep. Jennifer Wexton, D-Va., said in a statement.

Transgender rights groups and others are likely to sue to try to block the homeless shelter rule, as they have on other administration regulations on transgender rights. A coalition of 23 Democratic attorneys general filed a lawsuit Monday seeking to block the Health and Human Services rule on transgender health care under the Affordable Care Act from going into effect next month. The health department did not respond to a request for comment on the lawsuit.

“By rolling back rules that ensure the ACA protects all Americans, the president is unlawfully giving health care providers and insurers license to deny care to LGBTQ+ individuals,” New York state’s attorney general, Letitia James, said in a statement. “It is never acceptable to deny health care to Americans who need it, but it is especially egregious to do so in the middle of a pandemic.”

The American Civil Liberties Union filed a lawsuit on behalf of Jesse Hammons, a transgender man, against the University of Maryland Medical System last week, saying that he was denied gender surgery “because the surgery conflicted with the hospital’s Catholic religious beliefs.”

Gabriel Arkles, a senior staff attorney at the ACLU, said he is convinced the Affordable Care Act still protects transgender patients, regardless of what the administration says, but the new policy could discourage transgender people from seeking health care.

“Even if people are mistakenly thinking that now it’s OK to discriminate against trans people in health care or housing, that can lead to more instances of discrimination,” Arkles said.

Transgender rights groups say that such discrimination will extend to people who are not transgender. The housing department’s rule change for homeless shelters has language detailing methods of identifying transgender people based on their appearance.

“Reasonable considerations may include, but are not limited to, a combination of factors such as height, the presence (but not the absence) of facial hair, the presence of an Adam’s apple, and other physical characteristics which, when considered together, are indicative of a person’s biological sex,” the text reads.

Promoters of transgender rights say the new rule could even deny shelter to people who are mistaken as transgender. For example, a medical condition that causes excess facial and body hair growth affects around 5% to 10% of women, according to the Indian Journal of Dermatology, and is more common in women of color.

“The idea that you can create some kind of gender surveillance checklist that some front desk staff person is forced to look through as clients come in the door, it’s deeply disturbing,” said Dylan Waguespack, director of public policy at True Colors United, which works on preventing homelessness among LGBT youth. “It’s Orwellian.”